Articles Posted in Independent Contractors

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The Fair Labor Standards Act (FLSA) is the law that governs the pay of employees in the United States.  It requires that companies pay its employees at least minimum wage and at least time and a half for all hours over 40 in a given workweek.  In order to get around this requirement, many employers classify their employees as independent contractors.  Unlike employees, independent contractors are not entitled to minimum wage, overtime, unemployment benefits, workers’ compensation benefits, protection under the Family Medical Leave Act, Title VII, etc.  Therefore, if your company is misclassifying you as an independent contractor when you are truly an employee, you could be missing out on a lot of owed compensation and benefits.

 

The U.S. Department of Labor states that the general rule of thumb is “most workers are employees – not independent contractors.”  Courts look at several factors to determine if an individual is an employee or an independent contractor.  If your job fits into just one of the below “employee” categories, you may be misclassified as an independent contractor and entitled to compensation.

 

Do any of the below “employees” statements apply to you?

 

Employees: Independent Contractors:
Not allowed to hire other workers to perform job Allowed to hire other workers to perform job
Employer controls how the worker performs the work Worker controls how they perform the work
Worker typically only performs the work for one company Worker can perform similar jobs for multiple companies
Worker does not have an opportunity to make more money by working more efficiently Worker has an opportunity to make more money by performing job more efficiently
Worker uses equipment and supplies given to them from their employer Worker provides his own equipment, supplies, uniform, truck, etc.
The work performed is not a specially skilled job Worker provides a specific special skill to perform the work
Worker is employed for an indefinite period of time or for a longer period of time like other employees Worker performs the work for a shorter, set period of time
The work performed is needed to run the company The work performed is not integral to the business but more likely a specific, special job
Worker is bound by company rules like other employees
The worker is trained to perform the work by the company

 

 

If Your Employer Misclassified You As An Independent Contractor, You Could Be Entitled To Compensation

If any of the above statements in the “employee” column apply to your job, you may be misclassified as an independent contractor and entitled to minimum wage, overtime, liquidated damages, attorneys’ fees and costs.   your overtime pay at a rate of 1 ½ of your regular rate for the time period of the

In order to recover these damages, you would be required to file a lawsuit.  Overtime lawsuits can also be filed as a collective or class action which permits other similar employees join the case to recover their overtime as well.   This permits employees a way for pursuing relatively small claims together that could otherwise be too costly.

If It’s Not Right, You Have To Fight!  At Martin & Martin, our Atlanta wage attorneys successfully represent employees like you every single day.  You worked hard for your pay, let us work hard to get you what you are owed.  Please contact us online or call us at (404) 831-8721 for a free consultation.

 

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A heavily litigated aspect of the overtime and minimum wage laws under the Fair Labor Standards Act (“FLSA”) is whether individuals are incorrectly classified as independent contractors instead of employees. If the individuals are, in fact, employees then they are entitled to minimum wage and overtime pay at a rate of time and one-half. The FLSA defines “employee” as “any individual employed by an employer,” and stipulates that an entity “employs” someone if it “suffers or permits [the individual] to work.” 29 U.S.C. § 203(e) (1).

To determine whether an individual is a protected employee or an unprotected independent contractor, courts look at the “economic reality” of the employment circumstances as a whole. This economic-reality inquiry turns on the following factors:

(1) the nature and degree of the alleged employer’s control as to the manner in which the work is to be performed;

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Our law firm has filed an overtime lawsuit against Spectrum Financial Services, LLC pursuant to the Federal Labors Standard Act (“FLSA”). The federal lawsuit alleges that Spectrum Financial, a national staffing company, hired individuals across the country to work for its client, Accenture, as contract administrators. The Complaint alleges that Spectrum paid these individuals an hourly rate but illegally failed to pay them time and a half for overtime hours (all hours over forty in a given work week). The Complaint also alleges that Spectrum classified some of its Accenture contract administrators as employees and illegally classified some of its Accenture contract administrators as independent contractors.

The Complaint was filed as a “class or collective action” on behalf of all Accenture contract administrators. This means that all other individuals who worked as Accenture contract administrators within the last 3 years may join the case — including those that Spectrum improperly classified as independent contractors.

The lawsuit seeks not only recovery of the unpaid overtime but also liquidated damages and attorneys’ fees and costs. Liquidated damages are known as “double damages” and permit successful individuals to double their unpaid overtime compensation.

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Last month, a Court of Appeals ruled that delivery drivers were employees not independent contractors and therefore, the drivers were entitled to overtime. The case involved a Georgia company called Affinity Logistics Corporation which contracted with Sears to provide home delivery services for various home furnishing retailers. The drivers were responsible for loading furniture and appliance deliveries, unloading deliveries, and installing the deliveries.

To determine whether the drivers were independent contractors or employees, the Court of Appeals stated that “the right to control work details is the most important or most significant consideration.”

The Court of Appeals then cited the ways that Affinity controlled the drivers’ work details:

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In June 2012, a fair pay collective/class action case that had been filed against Club Onyx settled. The strippers settled the case for $1.55 million. The strippers brought the case complaining that they were illegally classified as independent contractors as opposed to employees. The dancers claimed that they were actually employees – not independent contractors – and as employees they were entitled to minimum wage for each hour they worked. The settlement closed the matter for the 73 strippers who participated in the case.

If you worked at a strip club within the last 3 years and were treated as an independent contractor, you could be entitled to the recovery of lost wages. You can contact Martin & Martin, LLP for a free consultation. For more information about other stripper lawsuits in the nation, go to strippersrights.com.

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BLOG-Photo-Club-Dancers.jpgWithin the last few years, the issue of the proper status of exotic dancers or strippers has been litigated throughout the country and the general consensus among courts is that they are employees – not independent contractors — and entitled to at least minimum wage and overtime wages under the Fair Labor Standards Act (“FLSA”).

Typically, clubs classify exotic dancers as independent contractors and require the dancers to pay the club fees for the right to perform. The clubs, themselves, do not pay wages to the dancers at all. Rather, the dancer’s pay is completely from the tips from customers. As so-called independent contractors, the clubs do not ensure that the dancers are making at least minimum wage and do not pay the dancers overtime for hours over 40 per workweek. However, courts across the country have found that the independent contractor status is improper meaning the clubs must pay its dancers minimum wage and overtime pay for at least the previous two years.

In ruling that the dancers are “employees” as opposed to “independent contractors,” courts have looked to the fact that clubs typically set the prices for tableside dances, set the dancer’s schedules, create rules of conduct, discipline the dancers, and otherwise control the method and manner in which the dancers worked. Therefore, courts have found that the dancers were actually employees – not independent contractors – and as employees, they were entitled to minimum wage and overtime wages pursuant to the FLSA.

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Federal Judge Gardner of the United States District Court for the Eastern District of Pennsylvania ordered kgb USA, Inc. to pay $1.3 million in minimum wage for violations of the Fair Labor Standards Act (“FLSA”). Kgb USA is the world’s biggest provider of directory assistance which hired workers to respond to text messages from the company’s customers. The workers worked out of their homes throughout the United States.

The federal court found that the company misclassified the home workers as independent contractors rather than employees. As employees, the workers were entitled to at least minimum wage of $7.25 per hour. However, the investigation found that the company paid the workers on a piece rate basis based upon the amount of text messages to which they responded regardless of the number of hours they worked. When the workers’ hourly rate was calculated, it was discovered that the company was not providing the workers with at least $7.25 per hour in violation of the FLSA.

Acting Secretary of Labor Seth Harris stated that “misclassification of workers as independent contractors is a serious threat to their livelihood. Misclassifying workers also undercuts responsible employers who must compete with unscrupulous employer who do not obey the law.”

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BLOG-Photo-ConstructionWorker.jpgDoes your employer call you an “independent contractor” but treat you like an employee? If so, you could be entitled to overtime. Under the Fair Labor Standards Act (“FLSA”), employers are not required to pay independent contractors time and a half for overtime. However, employers routinely misclassify workers as independent contractors as opposed to employees to cut down on overtime pay. This is against the law. So-called independent contractors who are actually employees are entitled to overtime pay at a rate of one and a half times their regular rate of pay for all hours over 40 in a workweek.

The Supreme Court and the Department of Labor have instructed courts to look at several factors to determine whether a worker is a true independent contractor or an employee entitled to overtime. Note: all of these factors do not need to be present in order for the courts to find a worker an employee as opposed to an independent contractor. The courts look at the situation as a whole. The Supreme Court factors include:
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On October 4, 2012, Martin & Martin filed a potential collective action against Horizon Satellites, Inc. alleging that the company misclassified its dispatchers / customer service representatives as independent contractors to avoid paying them overtime. Horizon Satellites contracts with DISH Network Satellites to install, maintain, and repair satellite systems in several states including Georgia, South Carolina, North Carolina, and Virginia. The suit was filed on behalf of dispatchers / customer service representatives who allege that they consistently worked more than 40 hours per week but were not paid one and one half times their regular hourly rate as required by the Fair Labor Standards Act (“FLSA”).

The FLSA requires companies to compensate employees one and one half times their regular hourly rate for all hours over 40 in a workweek. However, there is an exception to this rule for true independent contractors who are not automatically entitled to time and half for overtime pay. However, many times, employers misclassify employees as independent contractors as a mistake or on purpose to avoid paying overtime. Under the law, in order for a worker to qualify as a true independent contractor, certain requirements must be met. Most importantly, the independent contractor must have the ability to control the manner and means of their work (i.e. the time they start working each day, the time they stop working each day, which days they work, how they perform their duties). If not, the worker may be misclassified as an independent contractor and entitled to overtime pay.

The lawsuit Martin & Martin filed on behalf of the dispatchers / customer service representatives alleges that the company misclassified the workers as independent contractors and paid the workers a set amount per day or a set amount per completed call but did not pay the workers an overtime rate for hours over 40 in a workweek. The lawsuit seeks to recover overtime pay for the workers plus liquidated damages (also called “double damages”).